36. What is Pacifism in
Japan’s Constitution

19 October 2016

Pacifism in Japan’s Constitution is structured so that it does not allow war, the use of military force or military law. This is indicated in the Prologue and Article 9, as well as in Article 18.
Along with the constraints mentioned in Article 9, the draft in a universal conscription system is prohibited for being “involuntary servitude”. In Article 76, Section 2, the establishment of an
extraordinary military tribunal is prohibited and this applies to court-martials or other forms of military trial. Furthermore, there are no war/militaristic provisions in the Constitution. The
Prologue states that Japanese citizens should “never again be visited with the horrors of war through the actions of the government,” “proclaims that sovereign power resides within the people,”
and “establishes this Constitution” under these conditions. This passage clearly shows the significance of enacting this constitution with a basic understanding of the horrors of the Asia-Pacific
war. Next, citizens are to “desire peace for all time” and to “desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny
and slavery, oppression and intolerance for all time from the earth” and to “recognize that all peoples of the world have the right to live in peace, free from fear and want.” The establishment
of the “right” to live in peace (peace as a human right) was revolutionary. The constitution says that peace should not be entrusted to policies decided by a political majority.

In order to comprehend the standard meaning of the “lack of war/militaristic provisions” in Japan’s Constitution, it is necessary to understand the proper meaning of
constitutionalism. Constitutionalism is an idea in which citizens, who hold sovereign power, have the power to establish, give authority, and/or limit certain government powers, such as in
legislation, administration, and jurisdiction, in order to protect human rights. However, the belief that “things are not prohibited unless they are clearly stated as such in the Constitution”
and that this frees a government to do what they want is the kind of misinterpretation that occurred during the Meiji era, when, according to the Constitution of the time, the Emperor held the
reins of power. The fact that Japan’s Constitution does not have any regulations regarding war or the military clearly means that it does not tolerate and rejects any act of war or the military
in principle. The Meiji Constitution had regulations on the declaration of war, peace reconciliation, the right of necessity, and military operations. In Article 66, Section 2 of the present
Constitution, it is stated that the Prime Minister and the Secretary of State must be “civilians.” There are some who interpret this to mean that it is permitted for Japan to have a “military” as
long as none of its members become Prime Minister or Secretary of State. However, in Germany, the argument that Article 4, Section 3, of the Basic Law for the Federal Republic of Germany, which
was enacted on May 23, 1949 and which states that nobody should be forced against their conscience to hold arms and fight in a war in an act of conscientious objection, was enacted on the premise
that a military can exist, was rejected by the German Society of National Law (ドイツ国法学会). In the end, the Basic Law was amended to allow the establishment of the Bundeswehr (National Defence
Force) in March 19th, 1956. This example shows that the creation of a military force that is legal both in theory and in practice is a matter that requires a revision of the Constitution.

Now, let us take a look at Article 9 of the Japanese Constitution. In Article 9, which provides the basis for Pacifism in Japan’s Constitution, Section 1 renounces war and the
use of force as the sovereign right of the nation, and Section 2 forbids the retention of land, sea, and air, or other fighting forces (also known as military force) and the right of
belligerence. I would like to call this the “Non-War/Non-Militaristic Constitution”. Section 1 follows the tradition of the Anti-War Treaty by Universalism (1929), so, although it does not deny
the right to self-defence, the implication is that Japan cannot exercise this right through the use of force. Section 2 is historically unique in its denial of the right to go to war alongside
its prohibition on armed forces. Lastly, pacifism in Japan’s Constitution does not refer to “passive peace”, which means a “state of no war”. It refers to a “positive peace” (Johan Galtung) in
which the goal is first to recognize that Poverty, Discrimination, and Suppression, which are the major causes of wars and disputes, constitute “Structural Violence”, and then to “actively”
eliminate these causes. By aiming to achieve this “positive peace”, the Constitution plans to “occupy an honored place in international society”. These acts to achieve peace include a “Positive
Policy for Refugee Relief” and the “Positive Acceptance of Refugees.”